JURIST - Paper Chase: Canada high court rules emergency wiretap provision unconstitutional

JURIST - Paper Chase: Canada high court rules emergency wiretap provision unconstitutional

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[JURIST] The Supreme Court of Canada[official website] ruled [judgment, PDF] Friday that an emergency wiretap [JURIST news achieve] provision allowing warrantless interceptions is unconstitutional. The specific section [s. 184.4] authorizes a peace officer to intercept private communication when there is reasonable ground for urgency and necessity to prevent serious harm. The case involved a warrantless interception of private communication by the police when a daughter received calls from her father telling her that he was held for ransom. The court addressed the issue of whether the provision was in violation of Section 8 [text] of the Canadian Charter of Rights and Freedoms protecting individuals from unreasonable search or seizure. The court came to the conclusion that although the provision ensure strict application only in extreme circumstances, its was overbroad in who could invoke the provision and it failed to include any accountability measures:

However, in our view, s. 184.4 falls down on the matter of accountability because the legislative scheme does not provide any mechanism to permit oversight of the police use of this power. Of particular concern, it does not require that notice be given to persons whose private communications have been intercepted. For this reason, we believe that s. 184.4 violates s. 8 of the Charter. We are further of the view that the breach cannot be saved under s. 1 of the Charter. Accordingly, we would declare the section to be unconstitutional.

With its decision, the court provided the Canadian parliament a 12-month period to readdress the section to bring it in compliance with the Charter.

A very similar ruling surrounding section 184.4 wasannounced [JURIST report] in 2008 by a British Columbia Supreme Court Justice Barry Davies. In that case, Justice Davies also struck down the section because it violated the protection from unreasonable seizure granted by the Charter and allow the parliament to revise the section within a 18-month time frame. Lack of notice requirement was also one of his main concerns.

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